Rawlings v Brisbane City Council

[2000] QPEC 7

PLANNING AND ENVIRONMENT COURT OF

QUEENSLAND

CITATION:	Rawlings v Brisbane City Council & Anor [2000] QPE 007
PARTIES:	CHRISTOPHER DAVID RAWLINGS (Appellant) BRISBANE CITY COUNCIL (Respondent) MILDRED CROMBIE (Co-Respondent)
FILE NO/S:	Appeal No. 4027 of 1999
DIVISION:	PLANNING AND ENVIRONMENT COURT
PROCEEDING:
ORIGINATING
COURT:
DELIVERED ON:	23rd. February, 2000
DELIVERED AT:	BRISBANE
HEARING DATE:
JUDGE:	QUIRK DCJ
ORDER: CATCHWORDS: COUNSEL: SOLICITORS:

1. This matter is before the court as a result of a remarkably incompetent performance by consultants engaged to carry out the public notification process. The relevant application (by the Co-Respondent) was for approval of a material change of use of land at Ascot. The proposal involved the removal of an existing dwelling and its replacement by two new dwellings on the subject land. A series of errors were made regarding the content of the public notice and the time during which it was displayed on the subject land. I propose to deal only with the more important of these deficiencies.

[2]	The public notice was placed on the land on 14th June 1999. It remained on the land until the early morning of 7th July 1999 ie. for a period of 17 business days.
[3]	The notice to adjoining owners was given on 15th June 1999 and the relevant advertisement placed in the Courier-Mail on 17th June.

1. Section 3.4.6(1) of the Integrated Planning Act requires that:

   “The notice placed on the land must remain on the land for all of the
   notification period”.

2. By reason of s.3.4.5 the notification period in respect of this application was required to be not less than “15 business days starting on the day after the last action under s.3.4.4(1) is carried out”.

[6] Section 3.4.4(1) deals with the publication of a notice in the newspaper and the
giving of notice to adjoining owners as well as the placing of a notice on the land.

1. Accordingly the notification period of 15 business days did not start until 18th June 1999 (the day after the newspaper advertisement). The result is that the notification period did not end until 8th July 1999, which became the last day for the making of submissions.

[8] The matter was further confused by the fact that, when the notice was placed on the
land, it indicated that:

“The final day of submissions is 2nd July 1999”.

On 16th June the notice was amended to read:

“The final date of submissions is 5th July 1999”.

1. The notice to adjoining owners should, by reason of s.3.4.4(2) have been in the approved form. However there were important departures from the approved form. The notice took the form of a letter in these terms:

   “Dear (adjoining owner),

   An application has been made by B M Crombie to remove/demolish the existing dwelling and build a house on each of lots 115 and 116, Ascot Street, Ascot.

   You are being notified because the Town Plan requires that owners of neighbouring houses be advised of proposals to build houses on lots less than 450 metres squared.

   Plans maybe inspected at Brisbane City Council, Town Planning Enquiries Counter, Floor 1, 69 Ann Street, Brisbane. If you should have any comments, please address your submission to:

   Brisbane City Council
   GPO Box 1434,

   Brisbane 4001.

   Yours truly”.

2. What is to be noted about the letter is that:

1.	The requirement to notify adjoining owners arises not only because of a proposal to “build houses on lots less than 450m²” but also because the removal of the existing dwelling constituted development that required ‘impact assessment’ (s.7.2.6 of the Town Plan). These “character housing” matters have been shown to be, potentially at least, of considerable community interest.
2.	The letter made no reference to the date on or before which written submissions could be made to the council.

1. It may be true, as suggested, that a more probable consequence of the last mentioned deficiency would have been a submission received out of time, and this was not what happened here. However I believe that there is force in the submission made by Mr Bowie, the appellant’s legal representative, that the degree of departure from the prescribed form may well have lead to confusion in the mind of the recipients as to their position as potential submitters under the IPA Act and what they were entitled to make submissions about.

2. The material before me identified the adjoining owners. Of these, Paula Rathie (who was not at the time resident on her land) was not given notice at all but has since indicated, in an affidavit, that had she known of the application she would not have exercised her right to make a submission in respect of it.

3. Of the others, Janette Edwards and the appellant did make submissions in respect of the proposal but the remaining adjoining owners, F and J Kerrigan and Alan Clark, did not. While Mrs Rathie’s affidavit is before me there is nothing to indicate the attitude of these parties to the proposal and whether they believe that they were adequately informed in respect of it.

4. The deficiency in the timing of the public notification on the land is also, in my view, a matter of some consequence. The effect of it is that for some days at the end of the prescribed notification period there was either no notice in place to advise potential submitters of their position or a notice that mis-informed them as to the time within which submissions might be made. The submission that those who first saw the notice shortly before it was taken down might have decided that they had insufficient time to prepare and lodge a carefully considered submission is also not without substance.

5. The power to excuse non-compliance is found in s.4.1.53 of the Act. On the material before me I am unable to reach the conclusion that the series of errors that has occurred in respect of the public notification of the proposal has not:

“(a)	adversely effected the awareness of the public of the existence and nature of the application; or
(b)	restricted the opportunity of the public to exercise the rights conferred by the requirements”.

Accordingly I am unable to grant the relief of non-compliance sought by the Co-
Respondent in this matter.